IN THE CASE OF:	  

		BOARD DATE:	  24 April 2012

		DOCKET NUMBER:  AR20110021229 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states he was home on leave with orders to go to his advanced individual training when he lost his ticket and means of transportation to Fort Jackson, SC.  He was afraid of the consequences and was fearful of contacting the military.  He had no experience in handling that situation and he was even afraid to tell his mother.  He believes the under other than honorable conditions discharge he received was excessive punishment and he was not given the opportunity to stay in the Army and finish his enlistment.

3.  The applicant provides no additional evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He enlisted in the Regular Army on 24 September 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 24 September 1979, he failed to report to Fort Jackson, SC.  He remained absent without leave (AWOL) until he surrendered on 4 October 1979 at Headquarters, Fort Campbell, KY.  On 12 October 1979, an administrative determination confirmed he was AWOL during the period from 24 September to 
4 October 1979 and his enlistment would be extended to cover the period of AWOL.

4.  On 4 January 1980, he again departed AWOL from Fort Jackson.  He was apprehended on 29 April 1980 in Nashville, TN and returned to military control.

5.  On 8 May 1980, court-martial charges were preferred against him for being AWOL from on or about 4 January to on or about 29 April 1980.

6.  On 8 May 1980, he was given a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

7.  On 9 May 1980, he voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with appointed counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Under Other Than Honorable Conditions Certificate
* advised he could submit statements in his own behalf

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than other honorable conditions discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

9.  He submitted a statement in his own behalf.  He stated he was requesting a discharge because he had financial problems at home and he had a lot of pressure from his parents.  He didn't think he would ever be able to adjust to military life and that was the reason he wanted out of the Army.  He was requesting a chapter 10 discharge so he could live a life with his family and be with them and take care of them.  He felt he had made a mistake by coming in the Army.

10.  On 3 June 1980, the appropriate authority approved the applicant's request for discharge for the good of the service and directed his discharge be under other than honorable conditions.

11.  On 11 July 1980, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations, Enlisted Personnel) due to conduct triable by court-martial.  He had completed 5 months and 13 days of active service that was characterized as under other than honorable conditions.  He had 155 days time lost.

12.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
14.  The Table of Maximum Punishments of the Manual for Courts-Martial, United States, 1969 (Revised edition), in effect at the time, shows the maximum punishment for being absent without leave for more than 30 days is:

* dishonorable discharge
* forfeiture of all pay and allowances
* confinement not to exceed 1 year

DISCUSSION AND CONCLUSIONS:

1.  He contends his under other than honorable discharge was excessive punishment and he wasn't given the opportunity to finish his enlistment.

2.  In his statement he submitted with his request for discharge, he had stated he didn't think he could adapt to military life and he wanted to be discharged so he could live a life with his family.  He also stated he made a mistake by coming in the Army.  Therefore, his contention now that he wasn't given a opportunity to finish his enlistment is contrary to the statement he submitted with his request for discharge.

3.  His under other than honorable conditions discharge was not issued as a punishment.  He acknowledged in his request for discharge in lieu of court-martial that he could be discharged under other than honorable conditions.  Had he been convicted by a court-martial he could have been sentenced to confinement not to exceed 1 year, forfeiture of all pay and allowances, and a dishonorable discharge.

4.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The issuance of an under other than honorable conditions discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

6.  He had two periods of AWOL, the second being for 115 days.  The fact that his second period of AWOL was terminated by apprehension by civilian authorities raises doubt as to his intention to return to military control of his own accord.  Therefore, his service was unsatisfactory.

7.  In view of the above there is no basis to upgrade his discharge to a general discharge under honorable conditions.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110021229



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ABCMR Record of Proceedings (cont)                                         AR20110021229



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